Citation NR: 9719594
Decision Date: 06/06/97 Archive Date: 06/13/97
DOCKET NO. 94-06 626 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to restoration of a total schedular rating for
non-Hodgkin’s lymphoma, to include a claim for a total
compensation rating based upon individual unemployability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Grace Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from July 1968 to April
1971.
This appeal arises from a December 1991 rating decision of
the Providence Rhode, Island, Department of Veterans Affairs
(VA) Regional Office (RO), which proposed to reduce the
assigned 100 percent rating to 30 percent for the veteran’s
service-connected lymphoma based primarily on the results of
a November 1991 VA medical examination. The RO notified him
of the proposed action later in December 1991. In January
1992, he requested a personal hearing in reply to the
reduction letter. In April 1992, the veteran testified at a
personal hearing before the RO. The RO considered his
hearing testimony, the evidence submitted at the personal
hearing, as well as the other evidence on file, and decided
to proceed with the reduction in rating. In July 1992, the
RO reduced the rating for the veteran’s service-connected
lymphoma from 100 percent to 30 percent, and notified the
veteran of its action later that month. He appealed to the
Board of Veterans’ Appeals (Board), seeking to have the
100 percent rating restored. He has since amended the claim
to include a request that a total compensation rating be
assigned based upon individual unemployability, in the event
that a 100 percent rating is not restored under the schedular
criteria.
In February 1996, the Board remanded the instant claim for
further development of the record. In March 1996, the
veteran moved to Florida and his claim was transferred to the
St. Petersburg, Florida RO.
REMAND
The veteran and his representative contend, in essence, that
restoration of the veteran’s 100 rating for his service-
connected non-Hodgkin’s lymphoma is warranted. It is
maintained that although the veteran is in remission at this
time, he is unable to maintain gainful employment at this
time because of leg cramps, back spasms, fatigue, and other
symptoms related to his non-Hodgkin’s lymphoma. The veteran
also states that if he is not restored to the 100 percent
schedular rating for his service-connected non-Hodgkin’s
lymphoma, he believes he warrants a total compensation rating
based upon individual unemployability.
The veteran is currently service-connected for non-Hodgkin’s
lymphoma, evaluated as 30 percent disabling.
The VA Schedule for Rating Disabilities, with respect to
hemic and lymphatic systems, was revised effective
September 22, 1995. The United States Court of Veterans
Appeals (Court) has held that where the law changes after a
claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply unless
Congress provides otherwise. Karnas v. Derwinski, 1 Vet.App.
308 (1990). Therefore, the veteran should be afforded the
opportunity to have his claim reviewed under the most
favorable of the foregoing criteria.
The Court has also held that when the Board addresses in its
decision a question that has not yet been addressed by the
RO, the Board must consider whether the claimant has been
given adequate notice of the need to submit evidence or
argument on the question, whether he has been given an
adequate opportunity to actually submit such evidence and
argument, and whether the Statement of the Case (SOC)
provided the claimant fulfills the regulatory requirements.
See 38 C.F.R. § 19.29. If not, the matter must be remanded
to the RO to avoid prejudice to the claimant. Bernard v.
Brown, 4 Vet.App. 384, 393 (1993); 38 C.F.R. § 19.9.
Moreover, if the claim remains denied, a Supplemental
Statement of the Case, addressing the new rating criteria is
required. 38 U.S.C.A. § 7105 (West 1991 & Supp. 1996);
38 C.F.R. §§ 19.29, 19.31 (1996).
In this claim, the veteran’s non-Hodgkin’s lymphoma has only
been evaluated under the criteria set forth prior to
September 1995. The veteran must be afforded an opportunity
to be evaluated under the new criteria and the RO must apply
the criteria that is most favorable to the veteran.
Additionally, a review of the record reveals that as a result
of the Board’s February 1996 remand, the veteran underwent VA
examination in August and September 1996. During those
examinations, it was ascertained that the veteran has
returned to employment in the construction industry. The
veteran should inform the RO as to whether he desires to
continue to pursue his claim for entitlement to an increased
compensation rating for individual unemployability.
In view of the foregoing, the case is REMANDED for the
following action:
1. The RO should request the veteran to
provide any evidence of current or past
treatment for non-Hodgkin’s lymphoma from
1996 to the present that has not already
been made part of the record, and should
assist him in obtaining such evidence
following the procedures set forth in
38 C.F.R. § 3.159 (1996).
The veteran should also be appropriately
contacted and asked if he wishes to
continue his appeal with respect to the
issue of entitlement to a total rating
for compensation purposes based on
individual unemployability.
2. After obtaining records from all
sources identified by the veteran, (VA
and private) the veteran should be
scheduled for VA examinations by
appropriate specialists, including a
vascular examination, to assess the
current severity of his service-
connected non-Hodgkin’s lymphoma, and to
ascertain the extent of the additional
(residual) disability that has been
noted to be related to this disability.
The examiners should be asked to review
the claims folder and a copy of this
remand, examine the veteran, and provide
opinions material to the present and
past rating criteria. The examiners
should be provided a copy of the
current, revised rating criteria.
3. The RO should notify the veteran that
he may submit additional argument,
evidence, or comment with respect to the
evaluation of his non-Hodgkin’s lymphoma
under the new and/or the old schedular
rating criteria.
4. The RO should take all necessary
adjudicatory action on the veteran’s
claims, including the issue of
restoration of a total compensation
rating for non-Hodgkin’s lymphoma
considering both the old and the new
rating criteria and applying those
criteria most favorable to the veteran.
If the benefits sought are denied, a
Supplemental Statement of the Case (SSOC)
should be issued. The SSOC should
contain a summary of any new evidence in
the case relating to the issues on
appeal, a summary of the applicable law
and regulations, including the new
schedular rating criteria, and an
explanation of how such law and
regulations affect the RO’s decision.
After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims folder should
be returned to the Board for further appellate review, if in
order. No action is required by him until he receives
further notice. The purposes of this remand are to procure
clarifying data and to comply with the governing adjudicative
procedures. The Board intimates no opinion, either legal or
factual, as to the ultimate disposition of this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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